COMMONWEALTH v. RANKINS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the order of a Superior Court judge revoking his probation. The judge relied on a police report setting forth the defendant's wife's statement that, on May 18, 2019, the defendant drove past her home and threatened her in violation of both (i) a G. L. c. 209A abuse prevention order and (ii) G. L. c. 275, § 2.² On appeal, he asserts the police report was not substantially reliable because it set forth only the uncorroborated hearsay allegations of the wife. We agree and, accordingly, we reverse the order.

Discussion. Due process requires that “when hearsay is offered as the only evidence of the alleged violation [of a condition of probation], the indicia of [the hearsay's] reliability must be substantial.” Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Factors a judge may consider in assessing the reliability of hearsay include: “(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity.” Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016).

Here, the only evidence of the defendant's violation of probation was hearsay -- namely, the police report documenting the wife's out-of-court statement to officers that the defendant had threatened her as he drove past her home.³ The police report provided:

“About 8:01 [p.m.] Officers Nee and Porter ․ responded to a r/c for a violation of restraining order at [address]. On arrival, spoke with victim who stated that the suspect (her husband) drove past her and stated ‘Bitch watch what happens when we get to court.’ Victim produced an active rest. order ․ Victim stated suspect was aware of rest. order [ ] because he was in court on day it was issued. Victim advised of rights under 209A. Search of area for suspect -- to no avail.”

The hearsay was not substantially reliable. See Durling, 407 Mass. at 118. The report was “nothing more than an account of [the wife's] statement. There were no indicia of reliability -- no observations of the police, no corroboration, [and] no investigation.” Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925 (1999). See Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 905 (2003) (officer's testimony not reliable where it “was nothing more than a repetition of what [the officer] had been told by the complainant”). Contrary to the Commonwealth's contention, the wife's account lacked factual detail. “Such details as there were in the police report were entirely of [the wife's] making ․” Wilson, supra. Consistent with due process, the hearsay could not be the sole basis for revocation of probation. See, e.g., Commonwealth v. King, 71 Mass. App. Ct. 737, 741-742 (2008) (police report restating what the domestic violence victim told police not sufficiently reliable for revocation of probation); Ortiz, supra (testimony of responding officer that domestic violence victim told him that defendant hit her car with baseball bat not sufficiently reliable absent corroboration); Wilson, supra (police report setting forth victim's account insufficient to revoke probation in absence of corroboration).

The judge found the report to be reliable because it was made contemporaneously.⁴ But, as the judge later acknowledged, the police report did not contain that detail; it did not say when the alleged incident occurred. Indeed, in reconciling the defendant's alibi (supported by a date and time stamped photograph depicting him and his granddaughter at Wollaston Beach in Quincy at the time of the report) ⁵ with the wife's hearsay in the report, the judge relied on the fact that the timing of the reported incident was not in the report.

The cases relied on by the Commonwealth are inapposite. In each, there was more substantiating the reliability of the hearsay than was presented here. See, e.g., Durling, 407 Mass. at 121 (holding reliable two detailed police reports relaying facts of defendant's condition and behavior as observed first hand by the reporting officers, each report providing details consistent with the other, and authored by officers who were from different departments and subject to criminal penalties for false reporting); Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998) (hearsay supporting revocation of probation sufficiently reliable where police report of victim's reported observation of defendant breaking and entering apartment corroborated by police observations of smashed window pane and defendant carrying burglarious tools; girlfriend's report of defendant using “crack” cocaine corroborated by police report of officer's first hand observation of defendant smoking crack cocaine); Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996) (sworn statement of percipient witness to violation of probation was reliable hearsay on which probation validly was revoked). See also Commonwealth v. Patton, 458 Mass. 119, 134 (2010) (victim's sexual assault intervention network interview reliable where victim described details of sexual assault consistent with prior reports, interview occurred after victim promptly reported assault, interview was conducted by forensic child interviewer with minimal leading questions, and judge could view victim's demeanor).

Nor is the reliability of the wife's statement enhanced by the other evidence presented during the hearing. That evidence included the wife's affidavit in support of the c. 209A order alleged to have been violated, the wife's second affidavit in support of another c. 209A order which was denied,⁶ and documents from the defendant's and wife's divorce proceedings, showing that the defendant had recently applied for custody of their minor child. None set forth information regarding the alleged probation violation and thus, none corroborated the wife's statement upon which the alleged violations were based.

Order revoking probation reversed.

FOOTNOTES

2.   This conduct also formed the basis of a criminal complaint charging the defendant with threats, in violation of G. L. c. 275, § 2, and violation of an abuse prevention order, G. L. c. 209A, § 7.

3.   Neither the wife nor the officers responding to the wife's call testified. Instead, only probation officer, John Chalmers, testified. He, however, had no knowledge of the incident beyond the content of the police report.

4.   The judge also relied on the fact that the statement in the report came from the wife in finding the report was reliable. In the absence of corroboration, however, this alone is insufficient. See cases cited supra.

5.   In addition to the date and time stamped photograph, the defendant presented an alibi through two witnesses who testified that he was with them from 6:00 p.m. through 9:00 p.m. on the evening of the reported incident. The reported incident was alleged to have occurred in Roxbury, while these witnesses reported the defendant was either in Lynn (earlier in the evening) or in Quincy (at the time of the report).

6.   The wife applied for two abuse prevention orders. The abuse prevention order that issued (and was relied on for the alleged probation violation) was not produced. The second application was denied when the wife, who had obtained the abuse prevention order at issue in the present case, did not appear.